Raja Aziz Addruse and Ding Jo-Ann
THE recent arrests of Teresa Kok, Sin Chew journalist Tan Hoon Cheng and well-known blogger Raja Petra Kamaruddin under the Internal Security Act 1960 (ISA) caused concern that the government could so readily use the draconian law of preventive detention without trial to silence criticisms made against it.
According to the home minister, the journalist had been arrested because her life had been threatened and the police wanted to conduct a comprehensive investigation. She was, it would seem, arrested under the act for her own safety.
On that basis, the arrest of the journalistwas clearly an abuse by the police of their power under the ISA.
Since he is the minister responsible for the police, the home minister is answerable for the wrongdoing of the police.
Kok, too, was released a few days after being detained without any plausible reason being given for her arrest. Raja Petra was ordered to be released by the court on Nov 7.
After the initial arrest under section 73(1) of the ISA, the minister had subsequently made an order under section 8 of the act for him to be detained for two years. This order has now been declared unconstitutional and ultra vires by the court.
The question that needs to be asked is how it is that such powers are now being exercised with what appears to be scant regard for the fundamental rights, liberties and freedoms guaranteed under the Federal Constitution.
Should those conferred with such drastic powers not be advised as to the limits of their power and of their responsibility in the exercise of such power s? The person who is constitutionally entrusted with the function of advising the government and ministers of government on such matters is the attor ney-general. It is his constitutional duty to uphold the Federal Constitution and citizens’ fundamen - tal liberties as guaranteed under Part II of the Federal Constitution.
It would have been the attorneygeneral’s duty to advise the police and the home minister that the reasons they gave for arresting Tan and Kok under the ISA did not warrant the exercise of power under section 73(1) of the ISA.
He should also have advised the police and the minister that there are specific prerequisites which need to be satisfied before the power of arrest and detention under the act can be lawfully invoked.
As is apparent from its preamble, the ISAwas passed by Parliament for the specific purpose of combating “a substantial body of persons” intent on overthrowing the lawful government of this nation by unlawful or unconstitutional means.
The attorney-general should have, in relation to the two-year detention of Raja Petra, also advised the minister that Raja Petra, outspoken though he may be, cannot by himself be considered to be “a substantial body of per sons” and that the order made by the minister for Raja Petra’s detention was, therefore, beyond his power s.
The attorney-general is essentially responsible for overseeing the legality of all government actions and ensuring that they are in accordance with the Federal Constitution, international law and domestic law. It is a heavy responsibility with potentially serious and far-reaching conseq u e n c e s.
In the United Kingdom, for example, the opinion of Attorney-General Lord Goldsmith in 2003 that there was legal basis for an invasion of Iraq heavily influenced the British Parliament’s decision to go to war.
As the attorney-general’s office is also responsible for the drafting of all federal legislation, it is also his duty to ensure that in the drafting of such legislation the fundamental liberties enshrined in the Constitution are upheld.
It would be part of his duty to point out any laws which are inconsistent with those fundamental rights and to recommend that the offending laws be amended or repealed.
For example, the Printing Presses and Publications Act 1984 made it illegal to possess or use a printing press without a licence and to publish newspapers without a permit from the home minister.
The dissemination of information via the printed media was essentially placed under the complete control of the home minister. Further, from 1987, the minister’s decision on the granting, suspension and revocation of permits was removed from the review of the courts.
This negates the media’s freedom of speech, as enshrined in Article 10 of the Constitution, since the home minister has the power to revoke a newspaper’s permit should it publish articles critical of the government and that newspaper would be left with no legal recourse.
Another example is the Official Secrets Act 1972 which makes it an offence to disseminate information classified as an official secret. Any government document may be classified as an official secret by any minister, chief minister or any public officer authorised to do so.
These decisions to classify a document secret are also exempt from review by the courts. Although restrictions on the freedom of speech can be made for reasons of public order or morality, there is again no check and balance or recourse to the courts should any government document be declared an official secret merely because the disclosure of its contents would prove detrimental or embarrassing to the government.
Yet another example is the Police Act 1967 that places restrictions on the freedom of peaceful assembly by requiring any gathering of three or more persons to obtain a police permit, failing which the gathering could be held to be an “unlawful assembly”.
In 1988, major amendments came into force, making it an offence not only for persons to take part in an unlawful assembly but also to “at t e n d ” and even more onerously, “to be found at” such assemblies.
Innocent passers-by can, therefore, be charged with an offence merely by being present.
The attorney-general should have called the government’s attention to the potential injustice that could be caused by these provisions and even recommended the amendment of the Police Act to bring it more in line with Article 10 of the Federal Constitution.
The Police Act should be amended as in essence, it is in conflict with the right to peaceful assembly guaranteed under the Federal Constitution.
This was the recommendation of the Human Rights Commission of Malaysia in its report on “Freedom of Assembly” published in 2001.
The Attorney-General’s Chambers appears not to have acted on this recommendation to ensure that the provisions of the Police Act are consistent with this right.
The attorney-general, as the chief legal adviser of the government, obviously wields enormous influence in the country. He can influence government actions by providing advice on their legality and is also responsible for the drafting of laws by which the country is governed.
At the moment, there is no adequate check and balance on the exercise of these vast powers granted to him under the Federal Constitution.
It is most desirable that such an important position be open to scrutiny to ensure proper accountability in the exercise of its functions.
It is perhaps time for the attorneygeneral once again to be a member of the cabinet so that his advice is listened to and heeded by his cabinet colleagues and in order that he be made answerable to Parliament, just like any other minister. This is the case in many other Commonwealth countr ies.
In the United Kingdom, for example, Goldsmith was made to answer to Parliament in 2007 on his constitutional role and his legal advice to the government. Such a practice is beneficial as it would encourage the government to think carefully before enacting laws of dubious constitutional consistency or carrying out potentially unlawful acts.
This is the second of a two-part series. Part One appeared on Nov 9. Raja Aziz Addruse is a former Bar Council president and former president of the National Human Rights Society (Hakam). Ding Jo- Ann is a Kuala Lumpur-based lawyer. This article was previously published in the New Straits Times on 16 November 2008.